Excerpt from Nov. 18, 1971, minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure
Agenda Item #5: Acting Chairman Shaft called for Agenda Item #5, which is Rule 51 (Exceptions Unnecessary) proposed by John Graham. The proposed text as read including the notes is as follows:
Rule 51. EXCEPTIONS UNNECESSARY. Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the
court the action which he desires the court to take or his objection to the action of the court and the grounds therefore. If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.
"NOTE: This is essentially the language of present Fed. Rule 51, and also NDR Civ. P Rule 46, with the addition of the word "Formal" preceding the first word of the above text. I see no particular value in adding the word "Formal". Alaska Rule 46 and Colorado Rule 51 are also identical. Delaware Rule 51 adds the following penultimate sentence: "Where justice requires the court may relieve a party from the consequences of failure to assign the proper reasons in support of an objection."
I have not included that sentence in my proposed draft. Whether the "court" referred to in that sentence is a trial or appellate court, it seems clear that action would be taken to relieve a party of the consequences of a failure to assign proper grounds for objection "where justice requires" under an extension of the doctrine of "plain error". See Rule 52, F.R. Crim.P., and On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967 (1952); United States v. Lewis, 433 F. 2d 1146 (D.C. Cir. 1970).
N.D. Statutes affected:
Section 29-21-32 - counsel is deemed to have "excepted" to instruction! given or refused by trial court, but he may be specifically required to object to instructions if he receives copies of them before the charge to the jury, see NDCC Section 29-21-33. Query, whether "rulings or orders" as used in the text of Rule 51 covers instructions given?
Section 29-23-05 states: "All orders, decisions, and rulings of the court in a criminal action are deemed excepted to."
Section 29-23-06 provides that instructions excepted to are part of the record of the action, and do not need to be made part of the statement of the case.
Section 29-21-12 makes applicable the rule of evidence in civil as well as to criminal cases, unless otherwise provided in Title 29, NDCC.
Section 29-17-21; 29-17-22; 29-17-26; 29-17-39 deal with exceptions to challenges of jurors or jury panels. Note: many of these sections may also be affected by adoption of Rule 24.
Repeal: Section 29-23-05
Retain: Sections 29-21-32; 29-21-33; 29-23-06; 29-17-21; 29-17-22; 29-17-26; 29-17-39
John Graham made a MOTION to adopt Rule 51. Seconded by Roger Persinger. Opened for discussion. Paul Sand suggested that the only language necessary in this Rule is "Exceptions to rulings or orders of the court are unnecessary." Judge Burdick agreed by saying that the rest of that Rule was unnecessary because it dealt with situations which North Dakota courts have not been faced and that the North Dakota courts were not required to take exception or to note exceptions in the case of jury instructions where the court made the request. Since jury instruction is separate by itself, the "period" would properly go after "unnecessary" in the first sentence of Rule 51.
Acting Chairman Shaft called on John Graham, as the drafter of the Rule, to comment on Judge Burdick's comment. John Graham said that he didn't have any objection except that he thought that the most important part of the Rule is in the part where it says "If the party has no opportunity to object". It was pointed out that Rule 51 was similar to the North Dakota Rules of Civil Procedure Rule 46 and that Judge Burdick had been on that committee. Judge Burdick said that at one time in North Dakota civil practice, before the civil rules procedure, one had to take exceptions. Judge Murray called the committee's attention to Chapter 29-18, dealing with Exceptions of the 1943 Code. He noted that this section defines what an exception is and those things which are deemed excepted to.
Paul Sand noted that 28-18-01 NDCC says that an exception must be taken at the time the decision is made except as otherwise provided in this Chapter. Under the definition it was held previously that an exception is an objection as to a matter of law in a decision. It must be taken at the assigned time the decision is made except as otherwise provided in this chapter. See the footnote at 28-18-01 which deals with a criminal case. It says "Unless exceptions in writing are taken to instructions given or refused in a criminal case..." John Graham MOVED that his Rule read as the last sentence of his proposed text.
"If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him."
It was suggested that the first sentence also be included in the motion, that is "Exceptions to rulings or orders of the court are unnecessary." The part thereafter in the first sentence, it was noted, was only included for historical reference and therefore should be excluded. The motion for the proposed rule as amended is as follows:
"Rule 51. EXCEPTIONS UNNECESSARY.
Exceptions to rulings or orders of the court are unnecessary. If a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him."
Judge Burdick suggested that there should be a cross reference to Rule 30 which does provide for exceptions on instructions. John Graham objected to the cross reference to Rule 30 as being unnecessary. Judge Erickstad suggested that this procedure might be covered in an annotation. Judge Ilvedson noted that the Rule as prepared by John Graham is general in nature but the cross reference to Rule 30 is specific, that is, specific with regard to instructions and it can't be interpreted otherwise. The question was called on the adoption for Rule 51 as proposed. The vote was unanimous and Rule 51 as amended is adopted.
Judge Burdick noted that he was provided by Mr. Travis with Public Law 91-358 (the District of Columbia Court Reform Act) which contains the Act dealing with Pretrial Detention of Dangerous Persons cited in 1 U.S.C.C.A. 756, Volume 1, 91st Congress Second Session 1970. This was the type of Act that Judge Burdick had in mind for reference to a rule or statute providing for pretrial detention of dangerous persons. Judge Burdick made a MOTION to reconsider his prior motion to include reference to the District of Columbia's enactment as just mentioned. There was no discussion; the question was called and the motion carried.
Excerpt from Feb. 20-23, 1973, minutes of the Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure
Rule 51, Exceptions Unnecessary. [adopted November 19, 1971] John Graham, sponsor. Second sentence deleted. No comparable A.B.A. standard.
Mr. Graham, sponsor, read Rule 51. Mr. Graham MOVED to amend line 2 of the Explanatory Note, as follows: "... to preserve a point on appeal...". Judge Erickstad seconded; the motion CARRIED. (See Attachment 8 for proposed Rule)
The reason for the staff's deletion of the second sentence was questioned. It was noted that the language was adopted from the federal Rule--but only the first and last sentence of that rule. Without the language from the federal
Rule which was deleted the two sentences cannot stand together. Since the entire language of the Federal Rule was not desired, only the first sentence has the necessary applicability.
Mr. Graham MOVED to readopt Rule 51. Mr. Sand seconded.
Mr. Graham MOVED to adopt the text of the Explanatory Note to Rule 51 as amended. Motion CARRIED.
29-17-22 no objection It was noted that this statute is also superseded by Rule 24.
28-18-01 There was extended discussion. It was suggested that the statute be superseded. The applicability to the Civil Rules were noted. John Graham suggested leaving the statute Considered since the statute defines "exception" and the Rule provides that exceptions are unnecessary. The need for the statute remained in question. Mr. Travis pointed out that there would be no ham to allowing the statute to remain. no objection
29-21-32 It was noted that Section 29-21-32 was also superseded by Rule 30. no objection
29-21-33 It is also superseded under Rule 30. Judge Erickstad asked if this would change procedure. no objection
29-23-05 no objection
29-23-06 no objection
29-17-26 Superseded by Rule 24; delete from list.
29-17-39 Superseded by Rule 24; delete from list.
29-21-12 Judge Pearce questioned the necessity for listing this statute. He MOVED to delete Section 29-21-12 from the list under Rule 51. Seconded by Mr. Graham. Motion CARRIED.
A question was raised concerning 27-09.1-12.
Mr. Graham MOVED to adopt Rule 51 with its Explanatory Note as amended.
Mr. Sand MOVED to include a Cross Reference to Rule 30. Mr. Graham seconded. It was noted that the necessity for the cross reference is the reference to Exceptions to Instructions in Rule 30(c). Cross Reference: "Rule 30. Instructions. Note: Rule 30 requires the taking of objection or exception." Judge Pearce seconded. Motion CARRIED without objection.
Mr. Sand MOVED to adopt Rule 51 together with the Explanatory Note. Motion CARRIED unanimously.
Discussion; Judge Pearce noted that H.B. 1493 was in some difficulty. He suggested the Committee back this bill since it was "better than nothing" and he would make the recommendation. He suggested reconsideration of Rule 23 in light of the outcome of this bill. [See Appendix, Status of Legislation affecting the Rules Committee for a discussion of the comments of Judge Knudson relative to this topic.]